State of New Mexico Asks for Rehearing of Tenth Circuit Tribal Water Rights Ruling

Appellee the State of New Mexico has requested that a Tenth Circuit appellate panel clarify a portion of its Sept. 29 ruling concerning sovereign authority’s effect on aboriginal resource claims, specifically water rights. New Mexico’s Monday petition explains its position that the panel “appears to reach beyond the scope of the certified legal question on review,” and asks for rehearing to avoid prejudice and confusion on remand.

The case arose more than three decades ago when the federal government commenced a “water-rights adjudication for the Jemez River Basin, claiming water rights on behalf of the Pueblos.” Three tribes, the Pueblos of Jemez, Santa Ana, and Zia, “have resided along the Jemez River in northern New Mexico since time immemorial; they resided there as their lands passed from Spanish sovereignty, to Mexican sovereignty, and finally to the United States,” the panel explained. The question before the court was “whether the Pueblos’ aboriginal water rights were extinguished by the imposition of Spanish authority without any affirmative act.” The majority opinion answered “no.”

The Tenth Circuit took up the interlocutory appeal as a “discrete[,] purely legal issue,” that came about mid-proceedings. Its September ruling reversed the lower court’s decision and remanded for further consideration.

The state now contends that the court’s assertions “are not supported by the evidentiary record below, conflict with the district court’s findings, and are not necessary to the majority’s holding that an affirmative act is required to extinguish aboriginal rights to water.” In large part, New Mexico takes issue with the court’s characterization of the United States and the Pueblos’ expert’s testimony. The majority opinion, it argues, unfairly conflates water rights with water use, and therefore discounts the substance of the expert’s testimony upon which the district court correctly relied.

New Mexico also argues that the court’s statements “could be read to address an issue not raised by the certified order, and the first issue to be addressed by the district court on remand: whether the Pueblos’ aboriginal water rights have been modified in any way by any actions of Spain.” The question of modification, the filing states, is “inextricably linked to the issue of the quantification of the Pueblos’ water rights,” an issue intended for the district court to address on remand.

Consequently, New Mexico asks the court either to vacate the relevant section of the majority opinion or clarify that it did not address or rule on the issue of whether Spain’s conquest altered the Pueblos’ aboriginal water rights.

The State is represented by the Office of the State Engineer and Abramowitz, Franks & Olsen, LLC.

The federal government is represented by the U.S. Department of Justice, and the Pueblos by Rothstein Donatelli LLP.